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May a former criminal defendant bring a civil rights action against a prosecutor who fabricated evidence during an investigation and then introduced that evidence against the defendant at trial? The Seventh and Second Circuits have divided in answering this question. On November 4, 29, the Supreme Court heard oral argument in an Eighth Circuit case raising this question, Pottawattamie County v. Harrington, 547 F.3d 922 (8th Cir. 28), cert. granted, 129 S. Ct. 22 (April 2, 29), and many expected the Court to resolve the circuit split later this term. But on January 4, 21, the Court dismissed the case and the lawyers announced a $12 million settlement.

This columns urges federal courts to recognize the analysis of the Second Circuit. The prosecutor who intentionally fabricates evidence in the investigative stage is clearly blameworthy and dangerous. If that prosecutor then knowingly uses that fabricated evidence to indict and convict a defendant, the prosecutor commits additional blameworthy and dangerous acts. Prosecutors argue every day at sentencing's throughout the country that repeated criminal acts are more deserving of punishment and show greater need for deterrence than isolated crimes. Similarly, the use of fabricated evidence in cases such as Pottawattamie County aggravates the prosecutor’s blameworthiness and danger, increasing both the retributive and deterrent justifications for imposing monetary liability.